Sebastian County prosecutor says Mansfield council violated FOIA

Friday

Sebastian County Prosecuting Attorney Daniel Shue said his opinion is that members of the Mansfield City Council violated the Arkansas Freedom of Information Act.

In a letter addressed to Mansfield City Attorney Matt Ketcham dated Feb. 9, 2018, Shue said no charges will be filed with regard to the incident; however, appropriate law enforcement action will be taken if any future violations occur.

Shue said his office received a citizen's complaint from Fort Smith Attorney Joey McCutchen that a violation of the FOIA had taken place in December through an exchange of texts and SMS messages. He contacted the Sebastian County Sheriff's Office to request a formal investigation of the matter. The department in turn completed an investigation and forwarded that report to Shue's office.

"From time to time, my office has become involved in these cases because Arkansas Code Annotated § 25-19-104 provides that, '[a]ny person who negligently violates any provision of this [act] shall be guilty of a class C misdemeanor,'" Shue said.

Shue said he believes the facts of the case are not disputed that prior to a scheduled meeting Dec. 21, members of the Mansfield City Council, as well as Mansfield Recorder/Treasurer Becky Walker, engaged in a series of text/SMS messages discussing city business.

McCutchen filed a lawsuit on Mansfield Mayor Larry Austin’s behalf Jan. 16 claiming the Mansfield City Council held a secret meeting by way of text message in violation of the FOIA, according to an article previously published in the Times Record. The lawsuit also claims Austin’s powers were removed in violation of Arkansas Code.

Court documents state the defendants admit that group text or SMS messages were sent between City Council members in December in violation of FOIA and constituted an illegal meeting or meetings under FOIA which were not public and for which no notice was given.

"I have read over and reviewed the report of Capt. Philip Pevehouse of the Sebastian County Sheriff's Office, and in particular where he states, 'the texts reveal city business was discussed, thoughts were shared, and a decision was made in which at least three members told (the city treasurer/recorder) they agreed with her,'" Shue said. "'In light of the statute and in court decisions a meeting took place on the group text and the public was not invited. Only seven elected officials were privy to the discussions and debate.'"

Shue said he is encouraged that Ketcham, as Mansfield city attorney, has agreed the actions violated FOIA and agreed to assist in making training available to the members of the Mansfield City Council.

"However, it is not for me to determine whether a particular violation is obstructive, but rather whether a violation has, in fact, occurred, which I so find," Shue said.

In regard to Shue's letter, Ketcham said it was what he expected of Shue, and he has great appreciation and respect for him. However, the lawsuit, having two parts, has not been fully resolved yet.

"One (part) was the FOIA violation, which we've taken care of," Ketcham said. "The other one was Mayor Austin's request for declaratory relief trying to get a judge, in this case Judge (Stephen) Tabor, to side with him saying that the City Council's action to reword the city's personnel policy was illegal. That's his position. Mr. McCutchen and I have discussed it, tried to resolve it, and in Mr. McCutchen's words, we just probably needed to agree to disagree on it, so that's moving forward. Now, that doesn't mean it won't get settled, but right now, everybody's pretty much dug their heels in and sticking to their guns."

The Mansfield City Council unanimously approved a motion to amend the Mansfield personnel policy handbook to replace the word “mayor” with “recorder/treasurer” throughout during a special meeting Dec. 28. Austin vetoed the motion, but the council voted to override his veto during its regular meeting Jan. 18.

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.

Advertising

Follow Us

Original content available for non-commercial use under a Creative Commons license, except where noted.
Times Record ~ 5111 Rogers Ave., Suite 471, Fort Smith, AR 72903 ~ Privacy Policy ~ Terms Of Service